Claimants have brought this motion seeking permission to amend their claim, as
well as to coordinate discovery with a companion Supreme Court action.

The following papers were considered by the Court in connection with this
motion:

Notice of Motion, Attorney Affidavit, with Exhibits 1,2

Memorandum of Law 3

In this claim, which was filed with the Clerk of the Court of Claims on April
3, 2006, claimants Darleen Lieber and Robert Lieber seek damages for injuries
allegedly suffered by their infant child, Jordan
Lieber[1], during a surgical procedure for a
right uteropelvic junction obstruction performed at the State University of New
York University Hospital at Syracuse on May 9, 2005. In their filed claim,
claimants have proceeded solely under a theory of res ipsa loquitur.
Claimants now seek to amend their claim by adding a cause of action based upon
allegations of medical malpractice. Pursuant to CPLR Rule 3025(b), a party may
amend pleadings at any time with Court approval, which shall be freely given.
It is well settled that in the absence of prejudice or surprise resulting
therefrom, leave to amend pleadings should be granted (McCaskey, Davies &
Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). In this
particular matter, it appears that the cause of action for medical malpractice
is based upon the same underlying facts that form the basis of the original
claim asserted under a theory of res ipsa loquitur. Therefore, it does
not appear that there would not be any prejudice or surprise whatsoever to the
defendant in allowing claimants to serve and file their amended claim.

Additionally, claimants have submitted an affidavit from their medical expert
(see Exhibit H to Items 1,2) which satisfies the Court, for purposes of
this motion, that the proposed amended claim has merit. Furthermore, no
objections have been raised by the defendant.[2]

In this motion, claimants have also requested an amended scheduling order from
this Court which would allow them to coordinate depositions and additional
discovery with a companion action commenced in Supreme Court. It is noted that
this Court has already issued an “Amended Order” dated April 28,
2008, directing that all discovery be completed on or before February 28, 2009,
and requiring that a Note of Issue and Certificate of Readiness be served and
filed on or before June 30, 2009. Accordingly, this aspect of claimants’
motion is moot.

Accordingly, based on the foregoing, therefore, it is

ORDERED, that Motion No. M-74871 is hereby GRANTED, in part, and claimants are
hereby directed to serve their amended claim upon the Attorney General and file
their amended claim with the Clerk of the Court within 30 days from the filing
date of this Decision and Order; and it is further

ORDERED, that pursuant to § 206.7(b) of the Uniform Rules for the Court of
Claims, defendant shall serve its answer to the amended claim within 40 days
after such service.

July 14, 2008Syracuse,
New YorkHON. NICHOLAS V. MIDEY JR.Judge of the Court of Claims

[1]. According to the proposed amended claim,
Jordan Lieber was born on September 23, 1989, and has now reached the age of
majority.

[2]. Defendant’s attorney notified
Chambers that he had no objection to the relief sought by claimants herein.